Are small organisations obliged to follow an independent disciplinary appeal panel's findings?

A problem facing employers with a small management team is
that there is often not enough managers available
for separate managers to conduct a disciplinary
hearing and an appeal hearing. An
independent HR consultant can often be the answer to conduct
either the disciplinary or the appeal hearing or both.

But what happens if the employer disagrees with the finding of
the independent appeal? This was the issue in the case of
Kisoka v Ratnpinyotip
(trading as Rydevale Day Nursery), which has recently
been before the Employment Appeal Tribunal.

Ms Kisoka was a nursery practioner employed by Rydevale,
a nursery caring for children up to five years of age and
employing 10 staff. A small fire had been started
at the nursery, which Ms Kisoka "discovered". During
initial enquiries, the nursery became suspicious about the fire
incident and CCTV records showed Ms Kisoka being alone at the
nursery and moving around the vicinity of where the fire had
started.

Rydevale invited Ms Kisoka to a disciplinary hearing. The
decision was to dismiss her without notice for gross misconduct on
the basis of the CCTV footage. Ms Kisoka was given the right
to appeal,and the nursery arranged for an independent consultancy
company to conduct this, although it was not made clear to the
consultancy as to whether the final decision would be made by the
appeal panel or by Rydevale. The independent appeal panel
concluded that the decision to dismiss should be overturned on the
basis that there was not enough conclusive evidence to indicate
that Ms Kisoka had started the fire. Rydevale was unhappy
with this outcome and conducted some further investigations of its
own which threw doubt onto Ms Kisoka's own evidence.
The appeal panel however continued to stand by its
decision. Based on its belief, Rydevale decided not to
implement the appeal panel's decision and upheld the dismissal.

Ms Kisoka brought a unfair dismissal claim. The Employment
Tribunal concluded that, looking at the evidence Rydevale had
available as a whole, including Ms Kisoka's movements on CCTV and
her failure adequately to explain her movements, Rydevale had
reasonable grounds for finding that Ms Kisoka had committed
misconduct. As to whether Rydevale was bound to follow the
decision of the independent appeal panel, the Tribunal noted that
the test remains whether the employer's conduct was "reasonable in
all the circumstances". It was observed that Rydevale had
adequately considered the panel's decision and, based on their own
investigations and knowledge of the premises and processes at the
nursery, were entitled to uphold the decision to dismiss. The
Tribunal also noted that the nursery was responsible for the
welfare of children and its decision not to re-employ Ms
Kisoka was reasonable given that the nursery still considered that
there were reasonable grounds to consider that she had tried to
start a fire. Ms Kisoka's unfair dismissal claim was therefore
struck out.

Ms Kisoka appealed to the Employment Appeal Tribunal on the
issue of whether Rydevale was entitled not implement the appeal
panel's decision. The EAT agreed with the Employment Tribunal
and emphasised that the test was whether the dismissal was
reasonable in all the circumstances.

This case highlights that employers may, in certain
circumstances, overturn the decision of an independent body
where it is reasonable to do so.

This does not however diminish the input of an
independent consultant in conducting disciplinary or appeal
hearings who will be able to assess the situation from a fresh
perspective. Further, an experienced HR consultant will
ensure that all relevant information is taken into account,
including undertaking any further necessary investigations, before
reaching a decision.